Walter Alvarado, Plaintiff,
against
Praveen Y. Pedankar and ISRAEL D. ALVARADO, Defendants.
|
17007/2012
Robert J. McDonald, J.
This is a personal injury action in which Plaintiff, Walter Alvarado, seeks to recover damages for injuries he sustained as a result of a two vehicle accident that occurred on July 17, 2012 on the westbound lanes of the Brooklyn-Queens Expressway near its intersection with the Long Island Expressway, Queens County, New York. At the time of the accident the plaintiff was a passenger [*2]in the vehicle owned and operated by his brother, defendant Israel D. Alvarado, when it collided with the vehicle operated by defendant, Praveen Y. Pedankar. This action was commenced by the plaintiff against the drivers of the two vehicles by the filing of a summons and complaint dated August 9, 2012. Issue was joined by service of the defendant's answer dated December 28, 2012. Plaintiff filed a note of issue on December 6, 2013. The matter is presently on the calendar in the Trial Scheduling Part for November 6, 2014.
Maureen Quinn, Esq., counsel for defendant Israel D. Alvarado, now moves for an order pursuant to CPLR 3212(b), granting summary judgment in favor of said defendant on the ground that this defendant is not liable for causing the subject accident. In support of the motion, Alvarado annexes a copy of the police accident report in which the responding officer states in the description of the accident that the Alvarado vehicle was proceeding westbound on the BQE when the Pedankar vehicle changed lanes into his lane of travel striking the Alvarado vehicle. The police report characterizes the apparent contributing factor as "unsafe lane change." The defendant also submits a copy of the pleadings and copies of the transcripts of the examinations before trial of Israel D. Alvarado, Walter Alvarado, and Praveen Y. Pedankar.
Defendant Israel Alvarado was deposed on November 18, 2013. He testified that he was involved in an accident on July 17, 2012. He was operating a GMC truck and his brother, the plaintiff herein, was a front seat passenger. He was proceeding westbound on the BQE on his way to Brooklyn to collect scrap metal from various locations. He stated that he was driving in the left lane when a small car that was in the lane to his right crossed into his lane striking his truck in the right front fender area. The smaller vehicle sustained damage to the rear left side and back. The other vehicle kept going after the impact, coming to rest against center concrete divider. Alvarado was proceeding at a speed of 50 miles per hour when the impact occurred. He did not see the other vehicle prior to the impact.
Praveen Pedankar was deposed on September 5, 2013. He stated that on the date of the accident he was operating a Honda Civic on the westbound BQE heading from his home in Queens to his place of employment in Manhattan. He stated that when he entered the BQE he merged into the second lane from the right. He intended to move to the left lane to exit for the Williamsburg Bridge and had his left turn signal engaged. He states that the other vehicle involved in the collision was a white pick-up truck and was immediately behind him in the same lane. He stated that his vehicle was impacted in the rear by the front of the pick-up [*3]truck and was propelled across two lanes of traffic and ended up on the center divider.
Walter Alvarado, plaintiff herein, testified at an examination before trial on September 5, 2013. He stated on the date of the accident he was a passenger in a truck operated by his brother Israel Alvarado. They were traveling in the left lane on the BQE. He stated that he observed the Pedankar vehicle come from the lane to his right into his lane of travel at which point his brother's truck struck the Honda. He states that his brother observed the Pedankar vehicle prior to the impact and tried to stop but could not avoid the collision. He states he brother tried to move onto the shoulder to avoid the impact. He stated that after the accident he helped open the driver's side door of the Pedankar vehicle to help the driver out. He alleges that as a result of the impact he sustained injuries to his lower back, left shoulder and left knee.
Defendant Alvarado's counsel argues in support of the motion for summary judgment, that the deposition testimony demonstrates that Alvarado was traveling lawfully in the left westbound lane of the BQE and that he was not negligent as a matter of law. He contends that defendant Pedankar was negligent in suddenly changing lanes without warning, without signaling, and without first ascertaining that it was safe to do so. As such he contends that Pedankar violated Vehicle and Traffic Law § 1128 and that his actions were the sole proximate cause of the accident. Counsel contends that defendant Alvarado had the right of way and was entitled to anticipate that defendant Pedankar would obey the traffic laws requiring him to yield before making his lane change.
In opposition, Renata Vizental, Esq., counsel for plaintiff Walter Alvarado and Brandy A. Smith, Esq., counsel for co-defendant Pedankar submit that the instant motion for summary judgment must be denied as the respective deposition testimony of the parties raises questions of fact as to how the accident occurred. Counsel claims that the parties each provided differing versions of how the accident occurred. For example, Israel Alvarado the driver, stated he never saw Pedankar's vehicle before the impact and did not take any action to avoid the accident whereas, Walter Alvarado states that his brother observed the Pedankar vehicle prior to the accident moving towards the left lane, beeped his horn, and moved to the left to try to avoid the accident. Pedankar also provided a conflicting version stating that the Alvarado vehicle was operating behind his vehicle in the middle lane when his car was impacted in the rear. Therefore, counsel asserts that since material issues of [*4]fact have been raised as to the cause of the accident and the parties involvement thereto, the motion for summary judgment must be denied.
Upon review of the defendant Alvarado's motion the plaintiff and co-defendant's opposition and defendant Alvarado's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
Based upon a review of the respective deposition testimony of the parties this Court finds that there are material issues of fact which preclude the granting of summary judgment to defendant Alvarado on the issue of liability. Although Alvarado states that Pedankar made a lane change into his lane of traffic striking his vehicle in violation of Vehicle and Traffic Law §§ 1128, defendant Alvarado stated that he did not see the Pedankar vehicle prior to the impact. Further, although the police report states that the responding officer believed that an unsafe lane change was a contributing factor, the police report submitted is not certified, and moreover, the officer's comments were based solely upon hearsay statements of the parties and not based upon his own observations (see Roman v Cabrera, 113 AD3d 541 [1st Dept. 2014]; Wilson v. Cheng, 98 AD3d 971 [2d Dept. 2012]). Further, Pedankar denied the accuracy of the police report.
The Appellate Division has stated that "there can be more than one proximate cause of an accident and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law" (Winner v Star Cruiser Transp., Inc., 95 AD3d 1109 [2d Dept. 2012] citing Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; Villa v Leandrou, 94 AD3d 980 [2d Dept 2012]; Calcano v Rodriguez, 91 AD3d 468 [1st Dept. 2012]). Although Alvarado testified that he had the right-of-way and was proceeding lawfully in the left lane of the BQE, and was entitled to anticipate that the Pedankar would obey the traffic laws (see Martin v Ali, 78 AD3d 1135, 1136 [2010]; Yelder v Walters, 64 AD3d 762 [2009]), Alvarado also had a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way. Here, Alvarado stated he never saw the other vehicle prior to the accident and therefore could not say what actions, if any, he [*5]took in order to avoid the collision. Thus, the plaintiff's evidentiary submissions did not prove his freedom from negligence as a matter of law, and as such, were insufficient to establish, prima facie, that Pedankar's actions were the sole proximate cause of the accident or to eliminate all issues regarding the facts surrounding the accident and whether either or both parties were negligent (see Allen v Echols, 88 AD3d 926[2d Dept. 2011]; Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; Myles v Blain, 81 AD3d 798 [2d Dept. 2011]; Sayed v Aviles, 72 AD3d 1061 [2d Dept. 2010]).
Further, the plaintiff passenger testified in contradiction to his brother that his brother did in fact see the other vehicle and attempted to take evasive actions. The co-defendant Pedankar also testified to a conflicting version of the accident stating that the accident did not occur while he was attempting to make a lane change, rather, he stated that his vehicle was completely in the same lane as the Alvarado truck when the Alvarado struck his vehicle causing his vehicle to be propelled into the concrete divide.
Therefore, viewing the evidence in the light most favorable to the non-moving parties (see Stukas v Streiter, 83 AD3d 18 [2nd Dept. 2011]; Judice v DeAngelo, 272 AD2d 583 [2nd Dept. 2000], this court finds that there are factual issues concerning whether the respective defendants each met their respective duty to observe what should have been observed and to exercise reasonable care under the circumstances (see Wilson v Rosedom, 82 AD3d 970 [2d Dept. 2011]; Cox v Weil, 66 AD3d 634 [2d Dept. 2009]; Borukhow v Cuff, 48 AD3d 726 [2d Dept. 2008]). Given the conflicting versions as to how the accident actually occurred and who was responsible for the accident, issues of credibility have been raised that cannot be determined on a motion for summary judgment (see Calderon-Scotti v Rosenstein, 119 AD3d 722 [2d Dept. 2014]; Lee v Hossain, 111 AD3d 799 [2d Dept. 2013]; Koeppel-Vulpis v Lucente, 110 AD3d 851 [2d Dept. 2013]).
Accordingly, for all of the above stated reasons it is hereby,
ORDERED, that the motion by defendant Israel D. Alvarado for an order granting summary judgment dismissing the plaintiff's complaint is denied.
Dated: October 7, 2014
Long Island City, NY
________________________
ROBERT J. MCDONALDJ.S.C.